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CONTESTED ELECTION. 



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LOWEY vs. WHITE. 


SPEECH 


OF 


HOK WILLIAM C.‘ OATES, 

li 

OW 


IN THE 


HOUSE OF REPRESENTATIVES, 

Monday, February 6 , 1888 . 



WASHINGTON. 

1888 . 





MAR 16 1888 ) 

OF ST 


# 



AUG 17 1907 

D. ot'D. 








Contested Election—Lowry vs. White, 


SPEECH 

OP 

HON. WILLIAM C. OATES. 


The House having under consideration the following resolutions: 

''Resolved, first, That James B. White, not having been a citizen of the United 
States for seven years previous to the lth of March, 1887, is not entitled to retain 
iiis seat in the Fiftieth Congress of the United States from the Twelfth Con¬ 
gressional district of Indiana. 

"Resolv d, second. That Robert Lowry, not having received a majority of the 
votes cast for Representative in the Fiftieth Congress from the Twelfth Con¬ 
gressional district of Indiana, is not entitled to a seat therein as such Represent¬ 
ative ”— 

Mr. OATES said: 

Mr. Speaker: At the last Congressional election in the Twelfth dis¬ 
trict of Indiana Mr. Lowry was the Democratic candidate and Captain 
White was the Kepublican candidate, and was elected over Lowry. 
The latter contested White’s election. The majority, including every 
Democratic member, of the Committee on Elections have made a report 
against White’s eligibility. He is a native of Scotland, and began his 
residence in Indiana many years ago. He legally declared his inten¬ 
tion to be naturalized and to become a citizen of the United States in 
1858. 

The majority of the committee report that he never did complete 
that intention and never was naturalized until a few days prior to his 
election; and that under the Constitution of the United States he, not 
having been a citizen for seven years, was ineligible to the office of 
Representative in Congress. The minority of the committee, composed 
entirely of Republicans, report that he was naturalized in 1865 and re¬ 
ceived a certificate thereof, which has since been lost or destroyed; 
that, although no judgment can be found upon the records of the court, 
nevertheless his naturalization can legally be and has been proven by 
parol evidence. 

This statement sets forth the legal phase of the controversy in this 
case, to which alone I shall speak. I do not care whether the deter¬ 
mination of this case will have any effect upon the voters of foreign 
birth in favor of the one party or the other. It is our duty to put on 
our manhood, leave demagogy and policy in the rear, and assert here 
what the law, the Constitution, and our oaths of office require of us. 

Mr. Speaker, the limited time which I have had for the investigation 
of this case has been devoted to its legal aspects. I congratulate the 
minority of the Committee on Elections upon their well-conducted bat¬ 
tle on this floor. I confess that there is some demoralization on this 
side of the Chamber, produced by the well-directed fire of gentlemen on 
the other side in iavor of the contestee. I felt this on Saturday, be¬ 
cause I had not then had time to investigate this case as I desired. But 
I have since considered the question in its legal aspect—which is the 
important one—and not with any partisan bias whatever, because I be- 

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4 


lieve that partisan considerations should have no place in determining 
a question of this kind. 

This case is important, sir, as a precedent. It must be conceded 
that the sitting member was overwhelmingly elected; and the only 
question is as to his eligibility under the Constitution to a seat on this 
floor. If he is eligible, no one would vote more unhesitatingly in favor 
of his retention of the seat than I would, without regard to his polit¬ 
ical opinions. 

But, sir, upon such investigation as I have had the opportunity to 
make, I totally dissent from the views which some gentlemen have so 
freely expressed on this floor, and which have been greeted by the ap¬ 
plause of gentlemen in sympathy with them—gentlemen whose judg 
ments were, perhaps, warped by that sympathy, and who, not having 
thoroughly examined the real question at issue, were influenced by a 
very natural inclination in favor of a member who is acknowledged 
to have been elected by a large majority. 

Now, the first fact in this case which is misleading is that under the 
constitution and laws of the State of Indiana, as in my own State, an 
alien who has legally declared his intention to become a citizen can vote 
and hold office. This circumstance presents an anomaly when you come 
to test the qualification of a person for a seat as a member of Congress, 
for under the law and constitution of my own State—and I presume 
it is so in the State of Indiana—a man may be eligible in one sense, as 
a member of Congress, and yet not in another. By section 2, of Article 
I, of the Constitution, it is provided: 

The House of Representatives shall be composed of members chosen every 
second year by the people of the several States, and the electors in each State 
shall have the qualifications requisite for electors of the most numerous branch 
of the State Legislature. 

But the Constitution further provides: 

No person shall be a Representative who shall not have attained to the age of 
twenty-five years, and been seven years a citizen of the United States, and who 
shall not, when elected, be an inhabitant of that State in which he shall be 
chosen. 

An alien may, by declaring his intention to become a citizen, under 
the constitution of many of the States, my own included, be a voter 
and eligible as a member to the most numerous branch of the Legis¬ 
lature, and yet not eligible to the office of Kepresentative in Congress. 

I regard such a provision in a State constitution as unfortunate and 
mischievous. No doubt the sitting member’s constituents, not aware 
of the requirements of the Constitution of the United States, believed 
Captain White to be eligible when they voted for him. 

The question of fact which presents any difficulty is as to the suffi¬ 
ciency of the evidence, if competent to show that the sitting member 
completed his naturalization more than seven years before his election. 
Admitting, for the sake of the argument, its sufficiency, the question 
arises, is it presented here in legal and admissible form? 

Just at this point there is a wide divergence of opinion among mem¬ 
bers. I, sir, agree with the majority of the committee. If Captain 
White, the sitting member, has failed to show by legal evidence that 
he was naturalized by a court of competent jurisdiction at least seven 
years before his election, he is not entitled to a seat in this House, I 
care not by what majority he was elected. Let us examine the ques¬ 
tion. 

It is, I believe, conceded by all that naturalization requires judicial 
action—a proceeding, proof, the oath, the order of court, and the judg¬ 
ment. What, then, is a judgment? A judgment is— 

The final determination of the rights of the parties in the action. (New York 
Code of Procedure.) 


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5 


Judgment: 

The decision or sentence of a court on the main question in a proceeding, or 
on one of the questions, if there are several, (Rapalje and Lawrence’s Law Dic¬ 
tionary.) 

Judgment: 

The authenticated decision of the court, obtained in a suit, upon the relative 
claims of the parties therein submitted; the sentence of the law pronounced by 
the court upon the matters presented by the record of proceedings in a suit. 
(Abbott’s Law Dictionary.) 

Whenever the proofs are submitted, the oath taken, and the judicial 
mind passes upon it, and thus gives voice to the law declaring in favor 
of the applicant’s right to become a citizen of the United States, this 
is the judgment. It is perfect up to this point, but stopping here it 
can neither be proven nor enforced. It must be enrolled or recorded, 
or some record made thereof. 

Judgments do not and can not rest in parol. Where the judicial mind 
has passed upon a question within its jurisdiction and an imperfect 
record has been made thereof, it may be amended subsequently nunc 
pro tunc; or if a judgment be perfectly enrolled or entered of record 
and the record is destroyed, it may be re-established in the court where 
rendered, and in some cases, where it comes in collaterally, it may be 
proved by parol. But in no case can it be thus proven where the bene¬ 
ficiary founds a right upon it or where the right he claims depends 
upon its existence. 

The judgment itself, or a certified copy thereof, is the highest, best, 
and only competent evidence to prove its existence and contents. The 
judgment of the court admitting the contestee to citizenship is one 
thing, the proof of it is quite another. The friends of the contestee 
confound the two, which produces all the fog and misunderstanding in 
this case. I say it is not a j udgment complete until a record is made 
of it; and the friends of contestee do not claim that any record ever 
was made of the proceedings of the court by which he claims to have 
been naturalized, except a certificate which he says that he had, but 
can not produce it. 

Now, the gentleman from Massachusetts [Mr. Collins] and others 
rely on the case in 6 Cranch, which is about the strongest on their 
side of the question; therefore I will invite the attention of the House 
to it, as an examination of it fails to bear out their assertions. The 
certificate in that case is as follows: 

At a district court held at Suffolk, October the 14th, 1795, William Currie, late 
of Scotland, merchant, who hath migrated into this Commonwealth, this day 
in open court, in order to entitle himself to the rights and privileges of a citizen, 
made oath that for two years last past he hath resided in and under the juris¬ 
diction of the United States, and for one year within this Commonwealth, and 
also that he will support the Constitution of the United States, and absolutely 
and entirely renounce and abjure all allegiance and fidelity to any foreign 
prince, or other state whatsoever, particularly to the King of Great Britain. 

A copy. 

Teste: JOHN C. LITTLEPAGE. 

The original memorandum made upon the minutes of the court was 
as follows: 

At a district court held at Suffolk, October the 14th, 1795, William Currie, na¬ 
tive of Scotland, migrated into the Commonwealth, took the oath, etc. 

Now, sir. while that was defective in not containing all the recitals 
which the law required, yet it contained enough, with that which was 
stated and entered upon the record, that when it came to be dealt with 
collaterally the court held it to be sufficient. 

The daughter of Currie after his death brought a suit for the land of 
which he died seized, and the plea was that she was an alien and could 
not recover it. She replied that she was the daughter of an alien who 
had been naturalized. After this proof was brought in there was no 


( 


6 


response from anyone—no contradictory evidence offered—and the court 
held that this, while a defective record, was sufficient. Under the law 
which permits certain defective records to be explained by parol, that 
evidence was competent and sufficient, no contrary testimony appear¬ 
ing. Now, sir, that decision does not sustain gentlemen in this case at 
all. 

What is the case here? It is not that a record was made. It is not 
that there is a certificate and defective record, but of no record at all. 

I do not profess to be familiar with the evidence in the record of this 
case; but whether the sitting member has produced here evidence suffi¬ 
cient to have entitled him to a record of naturalization and certificate 
in the court where he says he obtained it, is unimportant, because wholly 
inadmissible in the form it is here presented. 

Mr. Speaker, if there ever was a certificate, and I may concede for 
the purpose of my argument that there was, the sitting member has 
not done that which it was his duty to do to entitle him to the benefit 
of it and the judgment, which he does not even allege was ever entered 
of record. I dissent from the proposition that a man in whose favor 
a judgment of a competent court has been rendered and never entered 
can go on in a case like this, take the oath, and become entitled to all 
the privileges and rights of a citizen without doing something more. 

Why, sir, the judgment in such a case confers no higher right or priv¬ 
ilege, that makes a difterent case from judgments rendered in other 
proceedings, than those, for instance, where a citizen sues and obtains 
a judgment for property or money, which judgment has never been 
entered. Can any one main'ain an action upon a judgment which is 
never entered or enrolled? 

I appeal to every lawyer in this House to answer this point. If A sues, 
and the judicial mind passes upon the question and awards him $50,000, 
yet the clerk, has never entered it, A does not look into the fact and 
ascertain whether there has been a compliance on the part of the clerk, 
or does not compel the performance of this ministerial duty. 

The clerk of course fails to issue an execution upon the judgment 
because it was never entered of record, and when A sues upon that 
judgment or pursues the defendant into another jurisdiction and sues 
upon it to obtain his money, as he would or might have to do, and the 
defendant pleads mi' tiel record., can the plaintiff sustain his claim by 
setting up the fact that the judicial mind has passed upon his claim 
and adjudged him to be entitled to the award of $50,000 without show¬ 
ing that judgment? Would the court receive any other evidence of 
that judgment than the record itself or a certified copy thereof? 

I apprehend that there is no lawyer here who will risk his reputation 
by asserting the contrary. In the present case the contestee asserts his 
right to retain his seat upon the floor of the House by virtue of a judg¬ 
ment which rests alone in the judicial mind—an intangible thing, like 
an immaterial substance, and with no legal or competent proof to estab¬ 
lish it He asks this House to trust to the slippery memory of man 
rather than to the solemn record of a court, which imports absolute 
verity. 

If the contestee had a judgment against me for money or property, 
and there was no record evidence of it, as in this case, and he were to 
sue me upon his judgment, and I should reply mil tiel record, no court 
would receive parol evidence of his judgment to overturn my plea. 
He who founds a right upon a judgment must produce that judgment 
or show that it once existed of record in due form and has been de¬ 
stroyed. The contestee’s proof utterly fails to come up to either of 
these requirements. 

Now, Mr. Speaker, as to the necessity of enteringof record judgments, 


I will claim the attention of gentlemen for a few moments while I read 
an extract from Freeman on Judgments, 

The prompting's of the most ordinary prudence suggest that whatever, in the 
affairs of men, has been so involved in doubt and controversy as to require 
judicial investigation, ought, wlien made certain by a final determination, to be 
preserved so by some permanent and easily understood memorial. Hence all 
courts, and all tribunals possessing judicial functions, are required by the writ¬ 
ten or unwritten law, and often by both, to reduce their decisions to writing in 
some book or record required to be kept for that purpose. The requirement is 
believed to be of universal application. 

Several decisions covering the point are referred to, and the text pro¬ 
ceeds: 

So that if any judgment or decree of any court, whether of record or not of 
record, whether subordinate or appellate, fails to be entered upon its record, the 
failure is attributable to the negligence or inadvertence of its officers and not to 
the countenance and support of the law. 

Then again— 

That which the court performs judicially, or orders to be performed, isnot to 
be avoided by the action or want of action of the judges or other officers of the 
court in their ministerial capacity. In the case of judgments they must first be 
entered upon the record before they are admissible as evidence in other courts. 

Mark the language— 

Must first be entered upon the record before they are admissible in evidence 
in other courts. For this purpose they are not otherwise perfect. The record, 
if not made up, or if lost or destroyed, should be perfected or replaced by ap¬ 
propriate proceedings in the court where the judgment was pronounced. 

Mr. Speaker, if there was a judgment which was never entered, or 
if there was a judgment which was evidenced only by the certificate 
issued to Captain White, and that certificate, as he says, is lost or de¬ 
stroyed, it was incumbent upon him to avail himself of the unrecorded 
judgment, and to have taken affirmative action in the court where it 
was obtained, to first establish it, and then he could have brought a 
certified transcript of it and his certificate here, and have met the plea 
or objection that he is not a naturalized citizen of the United States, 
and the proof would not have been questionable. But as it is, he is 
here asserting his naturalization without any legal proof to establish 
it. It is no hardship to require this. Our too liberal naturalization 
laws are easily complied with. What hardship is there in requiring 
him to produce legal evidence that he is entitled under the Constitution 
of the United States to be a member of this Congress ? I can see none, 
and I fear none of the dire consequences predicted by some gentlemen 
on the Democratic side of the Chamber in the event of the contestee 
being unseated ibr the want of such proof. 

Why, sir, the wisdom of ages has decreed against tracing the judicial 
determinations of the courts of the country through the slippery mem¬ 
ory of men, which is lull of uncertainty, and fades with time. The po¬ 
sition of gentlemen upon the other side of this question, when stripped 
of its fustian, gaudy rhetoric, and misleading eloquence, which pro¬ 
nounces any man who ever served in the Union Army incapable of tell¬ 
ing a lie, exhibits the nude deformity of an assertion that the solemn 
judgment of a court can rest in parol, which is an absolute absurdity 
in the estimation of every gentleman who has ever become familiar with 
the mere horn-books of the law. 

Mr. MILLIKEN. Will the gentleman allow me a question? 

Mr. OATES. I am unable to do so, 1 regret to say, as my time is 
limited. 

Mr. Speaker, the position I have assumed here has not been taken 
feckjessly, for I have the authorities to sustain me. 

In a recent case in North Carolina, sixty-lourth volume Supreme 
Court Reports, that court held that parol evidence was in no case ad- 
missil)le to prove a j udgment; that it must be first re-established under 
the law tor that purpose in the court that rendered it. 


V 


LIBRARY OF CONGRESS 


0 027 119 754 8 


8 

Why, sir, if it were permissible to come here into this forum and 
prove by parol Avliat the judicial authority in Indiana passed upon, 
how uncertain would be the proceeding? It would utterly destroy the 
safeguards of the law, which require these proceedings before a court 
to naturalize an alien and entitle him to the rights of citizenship. Let 
him go to the court where the proceedings are had, and if there is any 
fault in that court, any defect in the judgment there, any failure to 
enter it there, he may institute the proper proceedings, which the law 
provides for, re-establish his judgment, and bring here a certified rec¬ 
ord of it, which would be couclusive. 

Then, again, in the State of Vermont, in a case involving the very 
question of naturalization, the supreme court of that State held this 
language: 

The only other legal question which it is necessary for us to pass upon is 
whether parol evidence was admissible to prove the naturalization of a foreigner. 
A certified copy of the record of the court in which one is naturalized is the legit¬ 
imate evidence of the fact. Parol evidence to prove naturalization is inadmis¬ 
sible. 

VTiat is plainer than that? I will next invite the attention of gen¬ 
tlemen to an adjudication by the supreme court of my own State, Hall, 
t'8. Hudson, twentieth volume Alabama Eeports. It is there held— 

that a paper purporting to be a decree on the final settlement of an estate by 
the judge of the orphans’ court and filed among the papers of the case with the 
indorsement thereon: “Decree in the estate of James Hudson, deceased, filed 
second Monday April, 1S47also signed by the judge, is not the judgment of 
the court until entered on the record. 

[Here the hammer fell.] 

Mr. OATES. I should like two minutes more. 

Mr. CRISP. I yield the gentleman two minutes more. 

Mr. OATES. In the case of Hinson against Wall the same court— 
I have but time to read the syllabus—held— 

tliat a mere memorandum of the clerk stating the amount of damages assessed 
by the jury with the words “this judgment for the sum so found added ” does 
not constitute a judgment on which an action of debt can be maintained, al-. 
though the clerk certifies in properform that it is “ a true and perfect transcript 
and exemplification of the record.” And the proceedings of the courts of tlie 
several States composing the Union will be presumed to be go%'erned by the 
common taw until the contrary is shown. 

Just one authority more, and that is a very ancient but a good one. 

I refer to Blackstone’s Commentaries, which, like the Constitution of 
the United States in the estimation of some gentlemen, is well-nigh ob¬ 
solete. 

Blackstone says: 

A court of record is that where the acts and judicial proceedings are enrolled 
on parchment for a perpetual memorial and testimony, which rolls are called 
the records of the court, and are of such high and supereminent authority that 
their truth is not called in question. For it is a settled rule and maxim that 
nothing shall be avered against a record. Nor shall any plea or even proof be 
admitted to the contrarj*. If the existence of a record be denied it shall be tried 
by nothing but itself; that is, upon bare inspection whether there be any such 
record or no, else there would be no end of disputes. 

And yet gentlemen assert that where no judgment was ever entered 
it is competent for them to come here and prove by paiol that such 
judgment was rendered. I utterly deny the proposition, and to my 
mind if this House allows this gentleman to retain his seat in direct 
violation of the well-established rules of evidence, they will violate that 
clause of the Constitution which declares an alien ineligible until he is 
naturalized. [Applause.] 


O 


